THE QUEEN v. TSANG KAU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 475 OF 1988

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BETWEEN

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J U D G M E N T

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1. The appellant was originally charged in the Magistrates court with five offences and eventually convicted on three and acquitted on two.

2. The offences on which he was convicted were two of indecent assault on a female and one, of claiming to be a member of a triad society. He does not now appeal against his conviction in respect of the triad society offence. His appeal is limited to the two convictions of indecent assault.

3. The charges in respect of those offences alleged on the 9th November 1987 at the bushes near a certain area in a village adjacent to Yuen Long, he with others indecently assaulted two different females The first charge alleged an indecent assault on the first prosecution witness and the second on the fourth prosecution witness.

4. The case against him on the first charge was that he was the actual assailant and on the second charge that the assault was committed by another with whom the appellant was acting in furtherance of a join enterprise.

5. On the date in question, three young girls, aged 12 or l3 at the time, went with three young boys of similar age, to an area near these bushes for the purpose of watching enthusiasts flying radio controlled model aeroplanes at about 4 to 5 in the afternoon. When the sun began to set and visibility put an end to the flying the young group went to the bushes nearby. The evidence was conflicting as to why they went there and what they did whilst they were there. But at some stage whilst they were there, after it had become dark, their presence attracted the attention of a group of men playing football nearby. That group descended on the group of youngsters who, on becoming aware of the presence of the second group, began to disperse. The football group was described as consisting of some 15 or 16 persons on one occasion, on another I think a witness said there were 20 or more. In any event the football group far outnumbered the youngster group. Member of the football group succeeded in grabbing hold of the three young girls who were PW1, PW4 and PW5, and it is as a result of the grabbing of PW1 and PW4 and the fondling of their breasts that these charges came to be laid.

6. Before the learned Magistrate, PW1 gave evidence and it is sufficient to say that the Magistrate in this statement of Findings gave no weight whatever as to her identification of the assailant in her description of, the assault upon her, she said that the man who indecently assaulted her came up from behind, grabbed her and then fondled her brcascs. Than man she said, was naked from the waist up. The Magistrate also rejected that evidence.

7. PW2 and "PW3 were two of the young boys who were with the girls at the time. Neither of them in evidence made any identification of the assailant of PW1. In fact their evidence was to the effect that the appellant did not take part in the assault upon her. But that evidence was rejected by the learned Magistrate.

8. PW4, the girl who was the subject of the second indecent assault charge, identified the appellant as a person in the group when the footballers descended upon them. But she did not identify him as the assailant of PWI.

9. PW5, the only other witness to give relevant, evidence about the scene of the assault said that when the group came up, she was grabbed up she was able to struggle free and run away, As she was running away, she looked back and she saw the appellant grabbing PWl.

10. The learned Migistrate came to the conclusion that, as the incident had, according to the witnesses; taken place in 3 to 4 seconds, and as the issue was identification, he was obliged to follow the guidelines laid down in Turnbull.

11. During the cross-examination of PW5, It was elicited that on the evening of the date of the alleged assaults, she had given a statement to the police in which she gave a description of the assailant of PW1. She then said that he had a tattoo an his, right arm, was aged 22 and had curly hair There was evidence before the Magistrate which he accepted that the appellant had no tattoo and was aged 32. The learned Magistrate, therefore, had before him evidence showing a material discrepancy between the description given by PW5 almost immediately following the incident, and her identification of The appellant during her evidence.

12. Turnbull indicates that that is a factor which weakens the quality of identification evidence The learned magistrate does not indicate that he gave consideration to that factor in assessing the quality of the identification evidence if he iiad he would have directed his mind to the possibility that PW5, the witness he found to have given "cogent and convincing evidence", could have been an honest but mistaken witness. He did not direct himself on the danger of concluding that because a witness is convincing the witness is not mistaken.

13. Turnbull requires that the Magistrate should have found no case to answer or at least acquitted unless he found other evidence which went to support the correctness of the identification It is true that the Magistrate did find a reason for accepting the evidence of PW5 notwithstanding the discrepancy between her description of the assailant on the night of the incident and her identification of the person of a different description in court but, having failed to direct himself in the way I have just mentioned, I think that notwithstanding the otherwise excellent reasons he has given for his decision, it still remains flawed. Accordingly, I find the conviction to be unsafe. The appeal must be allowed, and the convictions and sentences quashed.